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Courts Hear China's First HIV/AIDS Employment Discrimination Cases

March 31, 2011

In October 2010, an Anhui province court began the trial in China's first reported case involving alleged HIV-based employment discrimination. The university graduate who filed the lawsuit challenged the Anqing Municipal Bureau of Education's refusal to hire him after he tested positive for HIV. The court ruled against the plaintiff in the first trial and his appeal is pending. In October, a court in Sichuan province reportedly agreed to hear another case of alleged HIV/AIDS-related employment discrimination. The two cases are making their way through China's courts amid increasing calls by domestic and international organizations for greater legal protections for those living with HIV/AIDS in China.

On October 13, 2010, the Yingjiang District People's Court in Anqing city, Anhui province, began China's first reported trial involving HIV-based employment discrimination, according to an October 14 China Daily article. Xiao Wu (alias) filed a lawsuit against the Anqing Bureau of Education (BOE) claiming that city officials' refusal to grant him a teaching position based on his HIV-positive test results "violated stipulations in relevant laws prohibiting discrimination against persons living with HIV/AIDS and infringed upon the plaintiff's lawful right to enjoy equal employment," according to the plaintiff's statement, cited in an August 26 Legal Daily report. Xiao Wu reportedly had already passed a written exam and interview when, on July 12, he underwent a physical exam stipulated under national standards for hiring civil servants. After the initial physical exam results revealed "problems," officials required Xiao Wu to undergo further testing for syphilis, Hepatitis C, and HIV. According to the report, on August 15, the Anqing BOE informed him that he tested positive for HIV, that he therefore "failed to meet the requirements" (bu hege) of the physical exam, and that it had decided not to grant him employment. According to a November 29 Global Times article, on November 12, the Yingjiang District People's Court ruled against Xiao Wu, stating that teaching applicants should meet the mental and physical qualifications for employment set forth by China's 1993 Teachers Law, as well as the requirement stipulated in the Ministry of Education's 2000 Measures for Implementing the Teacher's Qualification (Article 8) that applicants not carry infectious diseases. According to a January 7, 2011, Southern Metropolitan Daily report (via Justice Net), Xiao Wu filed an appeal with the Anqing Intermediate People's Court on November 30. Xiao Wu's lawyer, Li Fangping, reported that the court had accepted the appeal, according to a December 2 Wall Street Journal report. The outcome of the appeal does not appear to have been reported in the media.

Meanwhile, on October 20, 2010, Xiao Jun (alias), filed a second HIV/AIDS-related employment discrimination lawsuit against the personnel and education bureaus in Yanbian county, Panzhihua city, Sichuan province, according to an October 21 China Daily report. According to the report, the county education bureau refused employment to Xiao Jun after he tested positive for HIV in two physical examinations. The education and personnel bureaus then reportedly disclosed his HIV-positive status to representatives of various county government offices. In an October 28 report, Beijing Yirenping Center (Yirenping), the public health advocacy and anti-discrimination organization providing legal services to Xiao Wu and Xiao Jun, referred to Xiao Jun's lawsuit as China's first reported case involving the right to privacy of people living with HIV/AIDS. According to Yirenping, Xiao Jun has reportedly asked the court to deem the education bureau's refusal of employment illegal and to demand that the education and personnel bureaus give a formal apology for the violation of privacy. Xinhua reported on November 30 that the case had gone to trial. A ruling in the case does not yet appear to have been reported in the media.

These two cases underscore the vague, and in some cases conflicting, laws and regulations that apply to HIV/AIDS-related employment discrimination in China. China's 2007 Employment Promotion Law (EPL) prohibits "employment discrimination" generally (Article 26) but does not clearly define what actions constitute such discrimination. The EPL's provisions specifically regarding the treatment of those living with infectious disease also are unclear. While Article 30 forbids employers from refusing to hire people with infectious diseases, it also states that people with infectious diseases may not "engage in work that law, administrative regulations, and the State Council's health administration departments prohibit them from engaging in, that would facilitate the spread of the disease." Article 3 of China's 2006 Regulations on HIV/AIDS Prevention and Treatment states that the rights of people living with HIV/AIDS "to marriage, employment, medical treatment, and school enrollment are protected by law." Article 29 of China's 2005 Civil Servant Law states that employers may determine "the items and standards for physical examinations in accordance with the demands of the position," and, in Xiao Wu's case, the Anqing BOE reportedly applied the health criteria in Article 18 of the 2005 General Civil Service Recruitment Physical Examination Standards (2005 standards), which states that people living with "...HIV/AIDS are not eligible [for civil service]." According to a December 1 South China Morning Post report, Xiao Wu's lawyer, Zheng Jineng, argued that teachers should not be classified as civil servants; however, the Yingjiang District Court ruled that the BOE had not acted improperly in applying the 2005 standards to Xiao Wu's application for employment. Article 13 of the 1993 Teachers Law, gives the right to determine the qualifications for teachers to the departments of education under the local people's governments at or above the county level.

Ambiguity in China's domestic laws and regulations regarding discriminatory practices toward people living with infectious diseases creates challenges in the regulation and punishment of such discrimination. (For additional information, see Section II—Public Health in the CECC 2010 Annual Report). Several groups have called for legal reform and greater protections for those who experience health-based employment discrimination. On November 30, the International Labor Organization (ILO) and the Chinese Center for Disease Control and Prevention (China CDC) jointly released a report highlighting policies in China that "do not protect the rights of people working in certain professions." The report states that such exceptions "contradict the overall spirit of [China's] 2006 national AIDS regulation which prohibits employment discrimination against people with HIV" and are "in direct conflict with international standards such as ILO Recommendation 200." The report points to problems in China such as denial of employment, minimal access to opportunities for career development, and social isolation and marginalization in the workplace and calls on the Chinese government to "reform relevant laws and regulations to better protect the rights of people with HIV. This would involve ensuring that there is no mandatory HIV testing for workers and no discrimination toward people with HIV in respect to recruitment, job placement or opportunities for advancement." The report also calls on the Chinese government to "ensure the confidentiality of [an] employee's HIV status in order to prevent workplace discrimination in any form," as well as to "improve the implementation of laws, regulations and government supervision relating to employment discrimination," and "improve knowledge and awareness of the law among authorities, employers, people with HIV and the general public."

In addition to the recommendations made by the ILO and China CDC, other groups have called for improvements in the area of HIV/AIDS-related employment discrimination. On December 1, World AIDS Day, 81 people living with HIV co-signed a letter to the Ministry of Health (MOH) calling for the revision of the health requirements for hiring civil servants, according to the December 2 China Daily report. The November 29 Global Times report also quoted Yu Fangqiang, a representative from Yirenping, stating that if Xiao Wu lost his appeal, the organization planned to call upon the State Council Legislative Affairs Office to review civil servant recruitment standards. The 2009 UNAIDS China Stigma Index reported that "stigma and discrimination experienced by people living with HIV [in China] is severe" and that improvements are necessary, "especially in terms of implementation of existing policies and laws to prevent stigma and discrimination...."

HIV-based employment discrimination is an issue that may affect a growing population of people living with HIV/AIDS as well as those who depend on their income. A 2010 joint MOH and UNAIDS report stated that "the number of people affected by HIV/AIDS is increasing and the modes of transportation are diversifying." The report estimated the number of people living with HIV in China to be between 560,000 and 920,000, and among them, the number of people living with AIDS to be between 97,000 and 112,000. (See related CECC analysis for more information on HIV/AIDS transmission in China and the Chinese government's treatment of civil society organizations.)

For additional information on the spread of HIV/AIDS in China and health-based employment discrimination, see Section II—Public Health in the Commission's 2010 Annual Report.